Hutchinson v Hutchinson, 2023 NY Slip Op 04583 [219 AD3d 1320]
September 13, 2023
Appellate Division, Second Department
[*1]
Earl Hutchinson, Respondent,
v
Dawn Hutchinson, Appellant.
Barton R. Resnicoff, P.C., Lake Success, NY, for appellant.
Vivia L. Joseph, Cambria Heights, NY (David B. Calender of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Joseph H. Lorintz, J.), entered September 22, 2020. The order, insofar as appealed from, (1) denied that branch of the defendant’s motion which was for leave to renew that branch of her prior motion which was pursuant to Domestic Relations Law § 237 for an award of interim counsel fees, which had been denied in an order of the same court entered January 3, 2020, and, (2) upon reargument, adhered to a determination in the order entered January 3, 2020, denying that branch of the defendant’s prior motion which was to enforce the mortgage payment and counsel fees provisions of a stipulation dated February 22, 2018.
Ordered that the order entered September 22, 2020, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, that branch of the defendant’s motion which was for leave to renew that branch of her prior motion which was pursuant to Domestic Relations Law § 237 for an award of interim counsel fees is granted to the extent that the plaintiff is directed to pay interim counsel fees in the sum of $23,418.28 to the defendant’s attorney, subject to reallocation after trial if deemed appropriate by the Supreme Court, and, upon reargument, so much of the order entered January 3, 2020, as denied that branch of the defendant’s prior motion which was to enforce the mortgage payment and counsel fees provisions of the stipulation dated February 22, 2018, is vacated, and thereupon, that branch of the defendant’s prior motion is granted.
In May of 2018, the plaintiff commenced this action for a divorce and ancillary relief. In August of 2019, the defendant moved, inter alia, pursuant to Domestic Relations Law § 237 for an award of interim counsel fees, and to enforce stated provisions of a “Stipulation to Discontinue Action” dated February 22, 2018 (hereinafter the stipulation). The stipulation had been executed by the parties in connection with a prior divorce action commenced by the plaintiff in 2015 (hereinafter the prior divorce action). In an order entered January 3, 2020, the Supreme Court denied the defendant’s motion. Thereafter, the defendant moved pursuant to CPLR 2221, among other things, for leave to renew that branch of her prior motion which was pursuant to Domestic Relations Law § 237 for an award of interim counsel fees, and for leave to reargue that branch of her prior motion which was to enforce those provisions of the stipulation which obligated the plaintiff to pay the mortgage on the marital residence and counsel fees incurred by the defendant in the prior divorce [*2] action. In an order entered September 22, 2020, the court denied that branch of the defendant’s motion which was for leave to renew that branch of her prior motion which was pursuant to Domestic Relations Law § 237 for an award of interim counsel fees, granted that branch of the defendant’s motion which was for leave to reargue that branch of her prior motion which was to enforce those provisions of the stipulation which obligated the plaintiff to pay the mortgage on the marital residence and counsel fees incurred by the defendant in the prior divorce action, and, upon reargument, adhered to the determination in the order entered January 3, 2020, denying those branches of her prior motion. The defendant appeals.
“An award of counsel fees pursuant to Domestic Relations Law § 237 (a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case” ( Fugazy v Fugazy , 210 AD3d 653 , 655 [2022] [internal quotation marks omitted]). “The decision to award an attorney’s fee lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court” ( Cohen v Cohen , 160 AD3d 804 , 806 [2018] [internal quotation marks omitted]; see Peritore v Peritore , 50 AD3d 874 , 874-875 [2008]). An award of interim counsel fees “ ’is designed to redress the economic disparity between the monied spouse and the non-monied spouse . . . to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet’ ” ( Prichep v Prichep , 52 AD3d 61 , 65 [2008], quoting O’Shea v O’Shea , 93 NY2d 187, 190 [1999]; see Nieves-Iglesias v Iglesias , 186 AD3d 1234 , 1235 [2020]). “Accordingly, courts should . . . normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause . . . articulated by the court in a written decision” ( Prichep v Prichep , 52 AD3d at 65-66). In making its determination, a court “may also consider ‘whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation’ ” ( Fredericks v Fredericks , 85 AD3d 1107 , 1108 [2011], quoting Prichep v Prichep , 52 AD3d at 64).
Here, in support of that branch of her motion which was for leave to renew, the defendant submitted the required statement of net worth and documentary evidence of her income, which she had failed to provide in support of her prior motion. Although the defendant did not explain her failure to provide this evidence in support of her prior motion, the Supreme Court, rather than denying that branch of her prior motion which was pursuant Domestic Relations Law § 237 for an award of interim counsel fees, should have either declined to hear that branch of her prior motion or should have denied it without prejudice to renew upon compliance with the applicable requirements ( see 22 NYCRR 202.16 [k] [2], [5] [ii]; Daich v Daich , 153 AD3d 900 , 901 [2017]). Accordingly, under the circumstances presented here, the court improvidently exercised its discretion in denying that branch of the defendant’s motion which was for leave to renew that branch of her prior motion which was pursuant to Domestic Relations Law § 237 for an award of interim counsel fees. Moreover, taking into account all of the relevant circumstances, including the disparity in the parties’ respective incomes, the extent to which the plaintiff’s conduct has resulted in a delay of the proceedings, and other relief awarded to the defendant, an award of interim counsel fees to the defendant, as the nonmonied spouse, is warranted ( see Fugazy v Fugazy , 210 AD3d at 655; Pezzollo v Pezzollo , 173 AD3d 918 , 920 [2019]; Cohen v Cohen , 160 AD3d at 806-807). Upon the exercise of this Court’s discretionary authority ( see Cohen v Cohen , 160 AD3d at 805), we determine that an award of $23,418.28, representing 50% of the total sum due to the defendant’s attorney, is appropriate under the circumstances ( see Domestic Relations Law § 237 [a]; Pezzollo v Pezzollo , 173 AD3d at 920; Prichep v Prichep , 52 AD3d at 65). We note that a more detailed analysis of the relative financial circumstances of the parties will be addressed after trial, and any interim awards will ultimately be considered by the trial court in the context of an overall resolution of the parties’ financial claims ( see Pezzollo v Pezzollo , 173 AD3d at 920).
Moreover, upon reargument, the Supreme Court should have granted that branch of the defendant’s prior motion which was to enforce those provisions of the stipulation which obligated the plaintiff to pay the mortgage on the marital residence and counsel fees incurred by the defendant in the prior divorce action. Stipulations disposing of proceedings and actions are binding contracts “not lightly [to] be set aside, and ‘are to be enforced with rigor and without a searching examination into their substance’ as long as they are ‘clear, final and the product of mutual accord’ ” ( Mooney v Manhattan Occupational, Physical & Speech Therapies, PLLC , 166 AD3d 957 , 960 [2018] [internal quotation marks omitted], [*3] quoting Peralta v All Weather Tire Sales & Serv., Inc. , 58 AD3d 822 , 822 [2009]; see CPLR 2104; Rogers v Malik , 126 AD3d 874 , 875 [2015]; Matter of Sheng v State of N.Y. Div. of Human Rights , 93 AD3d 851 , 851 [2012]). Moreover, “[w]hether a contract is to be enforced in its entirety or is severable is generally a question of intent, ‘to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted’ ” ( Lanza v Carbone , 130 AD3d 689 , 692 [2015], quoting Christian v Christian , 42 NY2d 63, 73 [1977]; see Young v Young , 142 AD3d 612 , 613-614 [2016]). Even where an agreement “consists of an unlawful objective in part and a lawful objective in part, the court may sever the illegal aspect and enforce the legal one, so long as the illegal aspects are incidental . . . and are not the main objective of the agreement” ( Lanza v Carbone , 130 AD3d at 692 [internal quotation marks omitted]).
Here, the terms of the stipulation requiring the plaintiff to pay the mortgage on the marital residence and counsel fees incurred by the defendant in the prior divorce action are clear, final, and the product of mutual accord, and must therefore be enforced ( see Mooney v Manhattan Occupational, Physical & Speech Therapies, PLLC , 166 AD3d at 959; Rogers v Malik , 126 AD3d at 875). We note that the plaintiff makes no argument that the parties abandoned the financial terms of the stipulation ( cf. Rosner v Rosner , 66 AD3d 983 [2009]). Contrary to the determination of the Supreme Court, the stated terms of the stipulation were not unenforceable on the ground that the stipulation contained additional terms which are undisputedly not enforceable ( see Christian v Christian , 42 NY2d at 73).
The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Barros, J.P., Maltese, Ford and Dowling, JJ., concur..